Miss Alexandra Gauto v Chemcare Wellness Pharmacy

[2021] FWC 3482

[2021] FWC 3482

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Alexandra Gauto
v
Chemcare Wellness Pharmacy
(U2021/3796)

DEPUTY PRESIDENT MASSON MELBOURNE, 17 JUNE 2021

Application for an unfair dismissal remedy– small business employer – jurisdictional objection - minimum employment period not met - application dismissed.

Introduction

[1] On 4 May 2021, Ms Alexandra Gauto (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment with Chemcare Wellness Pharmacy (the Respondent) on 5 May 2021 was unfair.

[2] The Respondent objects to the application on the basis that it was, at the time of the Applicant’s dismissal, a small business employer and that the Applicant had not completed the minimum employment period (MEP) of 12 months at the time of her dismissal as required under s.383(b) of the Act. Consequently, the Respondent contends that the Applicant is not entitled to pursue relief for her claimed unfair dismissal under the Act. The Respondent also objects to the application on the ground that the Applicant was not dismissed.

[3] Determination of the Respondent’s jurisdictional objection in respect of the MEP was set down for a hearing/conference on 21 June 2021. Materials were filed by the Respondent in accordance with directions issued by the Commission.

[4] The Applicant advised my chambers by email on 15 June 2021 that she did not intend to file any materials in response to the Respondent’s submissions and materials filed in respect of its MEP jurisdictional objection. The Applicant also advised that she would not be appearing at the hearing/conference listed for 21 June 2021. In the circumstances of there being no apparent factual contest in relation to the MEP jurisdictional objection, correspondence was sent to the parties advising of my intention to determine the jurisdictional objection on the papers. Neither party objected to that course of action.

Background and evidence

[5] There was no dispute that the Applicant commenced employment with the Respondent on 12 October 2020 in the role of Pharmacy Assistant 1 or that her employment ceased on 5 May 20212. The Applicant consequently worked for the Respondent for a period of 6 months and 23 days.

[6] The Respondent filed evidence in support of its submission that it was a small business employer as defined by s.23 of the Act. That evidence may be summarised as follows;

•  at the time of the Applicant’s dismissal the Respondent employed three employees; the Applicant, Anastasia Ivanov and Mehreen Qalser 3;

•  the Respondent is a discretionary trading trust with the trustee being Imransab Health Services Pty Ltd 4; and

•  at the time of the Applicant’s dismissal there were no associated entities (as defined by s.50AAA of the Corporations Act 200) 5.

Statutory Provisions

[7] Before considering the merits of the Applicant’s unfair dismissal application, the Commission is required by s.396 to decide certain matters. Section 396 provides as follows:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[8] It is not contested that the application was filed within the 21-day statutory timeframe specified in s.394(2) of the Act. Therefore, the next issue that must be determined is whether the Applicant is a person protected from unfair dismissal (s.396(b)). The question to be answered in respect of s.396(b) is that found at s 382(a) which relevantly states as follows;

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) The person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

…………………………”

[9] The minimum employment period is one year for a small business employer and six months for other employers, as provided by s.383 of the Act which states as follows:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[10] Section 23 of the Act relevantly defines a small business as follows:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

Consideration

[11] It was not contested that the Applicant was employed by the Respondent for 6 months and 23 days, from 10 October 2020 until 5 May 2021. Consequently, it follows that if the Respondent was a small business employer at the time of the Applicant’s dismissal, then she is not protected from unfair dismissal because she had not completed the minimum employment period of twelve months at the time of her dismissal.

[12] I am satisfied, and it was not contested that there were no associated entities of the Respondent within the meaning of s 50AAA of the Corporations Act 2001 (Cth). Therefore, it will only be those employees engaged by the Respondent that are relevant for the purpose of calculating the number of employees.

[13] I am further satisfied that the Respondent employed less than 15 employees at the time of the Applicant’s dismissal. Consequently, I am satisfied that the Respondent was a small business employer at the time of the Applicant’s termination of employment.

Conclusion

[14] Having found that the Respondent was a small business employer at the time of the Applicant’s dismissal, the Applicant has not completed the minimum employment period of 12 months with the Respondent at the time of her dismissal (s.382(a) of the Act). I therefore uphold the Respondent’s jurisdictional objection concerning the minimum employment period. The Applicant’s unfair dismissal application is dismissed. An Order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR730791>

 1   Letter of engagement – Permanent, dated 29 October 2021, Email from Sabrina Imran to Applicant dated 4 November 2021

 2   Letter of resignation, dated 28 April 2021

 3   Witness Statement of Imran Hashimi, dated 4 June 2021 at [6]

 4   Witness Statement of Asad Ansari (Accountant for the Respondent), dated 4 June 2021 at [4]

 5   Ibid at [5]